United States District Court, D. Kansas
ANTHONY J. HAMPTON, Plaintiff,
BARCLAYS BANK DELAWARE, et al., Defendants.
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
plaintiff Anthony J. Hampton brings this action
against eight named defendants, alleging violations of the
Fair Credit Reporting Act (“FCRA”), 15 U.S.C
§ 1681-1681x, and the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227. This matter comes
before the court on several motions filed by some of the
defendants: (1) defendant Discover Bank's Motions to
Dismiss (Docs. 56 & 75), (2) defendant loanDepot.com
LLC's Motion to Dismiss (Doc. 58), (3) defendant Equifax
Information Services, LLC and Equifax Inc.'s Motions to
Dismiss (Docs. 61 & 83), (4) defendant Marketplace Loan
Grantor Trust's Motion to Dismiss (Doc. 78), and (5)
defendant Trans Union LLC's Motion for Judgment on the
Pleadings (Doc. 107).
reasons explained below, the court denies defendant Equifax
Information Services, LLC and Equifax Inc.'s Motions to
Dismiss. Also, the court denies the remaining motions but
without prejudice to defendants reasserting their dismissal
arguments directed at an amended pleading. Also, the court
grants plaintiff leave to file a Second Amended Complaint-one
that cures the pleading defects that the court identifies
below. Plaintiff must file his Second Amended
Complaint within 20 days of the date of this Order.
following facts come from plaintiff's First Amended
Complaint (Doc. 48). The court accepts these facts as true and
views them in the light most favorable to plaintiff.
S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir.
2014) (“We accept as true all well-pleaded factual
allegations in the complaint and view them in the light most
favorable to the [plaintiffs].” (citation and internal
quotation marks omitted)).
March 20, 2018, plaintiff sent a demand to defendants
loanDepot.com (“LD”) and Marketplace Loan Grantor
Trust, Series 2016-LD1 (“Marketplace”). Plaintiff
demanded that defendants LD and Marketplace not call him.
But, between March 21 through May 22, 2018, plaintiff
received 71 calls on his cell phone from Marketplace, using
an automatic telephone dialing system or artificial or
prerecorded voices. Without plaintiff's permission,
Marketplace called plaintiff and left recorded messages.
Also, between March 24 and April 19, 2018, plaintiff received
10 calls on his cell phone from LD and Marketplace, using an
automatic telephone dialing system or artificial or
March 19, 2018, plaintiff sent defendant Discover Bank
(“Discover”) a “Notice of Dispute.”
This Notice demanded validation of an alleged account (0773).
On March 20, 2018, plaintiff sent defendant LD a
“Notice of Dispute. This Notice demanded validation of
an alleged account (9589). On March 21, 2018, plaintiff sent
defendant Barclays Bank Delaware (“Barclays”) a
“Notice of Dispute.” This Notice demanded
validation of an alleged account (6198).
March 20, 2018, plaintiff sent defendants Equifax, Inc.
(“Equifax”), Experian Information Solutions, Inc.
(“Experian”), and Trans Union, LLC (“Trans
Union”) Notices of Disputes of the Discover, LD, and
Barclays's accounts. Plaintiff disputes the accuracy of
the information that Discover, LD, and Barclays have reported
to the consumer reporting agencies (“CRAs”).
Discover, LD, and Barclays never have provided notice of the
disputed matters to the CRAs.
never has received “authentic evidence regarding the
validity of the debt.” Doc. 48 at 8 (Am. Compl. ¶
28). The CRAs contacted Barclays, Discover, and LD, and asked
for a reinvestigation of the alleged debt. Equifax, Experian,
and Trans Union have failed to report plaintiff's dispute
about the alleged debts.
on these alleged facts, plaintiff asserts that defendants LD
and Marketplace have violated the TCPA (Counts I and II).
Also, plaintiff asserts that defendants Barclays, Discover,
LD, Equifax, Experian, and Trans Union have violated one or
more provisions of the FCRA (Counts III, IV, V, & VI).
defendants seek dismissal of plaintiff's Complaint under
Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction
because, they contend, the Complaint fails to allege that
plaintiff sustained a concrete injury sufficient to confer
standing. Other defendants ask the court to dismiss
plaintiff's Complaint under Fed.R.Civ.P. 12(b)(6)
because, they contend, it fails to state a plausible claim
for relief against them. The court recites the legal standard
for a Rule 12(b)(1) dismissal for lack of subject matter
jurisdiction and a Rule 12(b)(6) dismissal for failure to
state a claim in the following subsections.
Motion to Dismiss for Lack of Subject Matter
courts are courts of limited jurisdiction and, as such, must
have a statutory basis to exercise jurisdiction.”
Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002)
(citation omitted). Federal district courts have original
jurisdiction over all civil actions arising under the
constitution, laws, or treaties of the United States or where
diversity of citizenship exists. 28 U.S.C. §§
1331-32. “A court lacking jurisdiction cannot render
judgment but must dismiss the cause at any stage of the
proceedings in which it becomes apparent that jurisdiction is
lacking.” Basso v. Utah Power & Light Co.,
495 F.2d 906, 909 (10th Cir. 1974) (citation omitted). Since
federal courts are courts of limited jurisdiction, the party
invoking federal jurisdiction bears the burden to prove it
exists. Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994).
a motion to dismiss for lack of subject matter jurisdiction
under Fed.R.Civ.P. 12(b)(1) takes one of two forms: a facial
attack or a factual attack. Holt v. United States,
46 F.3d 1000, 1002 (10th Cir. 1995). “First, a facial
attack on the complaint's allegations [of] subject matter
jurisdiction questions the sufficiency of the complaint. In
reviewing a facial attack on the complaint, a district court
must accept the allegations in the complaint as true.”
Id. (citing Ohio Nat'l Life Ins. Co. v.
United States, 922 F.2d 320, 325 (6th Cir. 1990)).
a party may go beyond allegations contained in the complaint
and challenge the facts upon which subject matter
jurisdiction depends.” Id. at 1003.
“When reviewing a factual attack on subject matter
jurisdiction, a district court may not presume the
truthfulness of the complaint's factual
allegations.” Id. “A court has wide
discretion to allow affidavits, other documents, and [to
conduct] a limited evidentiary hearing to resolve disputed
jurisdictional facts under Rule 12(b)(1).” Id.
(internal citations omitted); Los Alamos Study Grp. v.
United States Dep't of Energy, 692 F.3d 1057,
1063-64 (10th Cir. 2012).
Motion to Dismiss for Failure to State a Claim
Civ. P. 8(a)(2) provides that a complaint must contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Although this Rule
“does not require ‘detailed factual allegations,
'” it demands more than “[a] pleading that
offers ‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of
action'” which, as the Supreme Court explained,
“‘will not do.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the court must assume that the factual allegations in the
complaint are true. Id. (citing Twombly,
550 U.S. at 555). But the court is “‘not bound to
accept as true a legal conclusion couched as a factual
allegation.'” Id. (quoting
Twombly, 550 U.S. at 555). “‘Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice'” to
state a claim for relief. Bixler v. Foster, 596 F.3d
751, 756 (10th Cir. 2010) (quoting Iqbal, 556 U.S.
at 678). Also, the complaint's “[f]actual
allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555 (citations omitted).
complaint to survive a motion to dismiss under Rule 12(b)(6),
the pleading “must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is
plausible on its face.'” Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 570). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556). “The plausibility standard is not akin to
a ‘probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 556); see also Christy Sports, LLC v. Deer
Valley Resort Co., Ltd., 555 F.3d 1188, 1192 (10th Cir.
2009) (“The question is whether, if the allegations are
true, it is plausible and not merely possible that the
plaintiff is entitled to relief under the relevant
law.” (citation omitted)).
Defendant Discover Bank's Motions to Dismiss (Docs. 56
Complaint asserts one claim against defendant Discover,
claiming Discover violated the FCRA under 15 U.S.C. §
1681 (Count III). Congress “enacted [the] FCRA in 1970
to ensure fair and accurate credit reporting, promote
efficiency in the banking system, and protect consumer
privacy.” Safeco Ins. Co. of Am. v. Burr, 551
U.S. 47, 52 (2007). Among other things, the FCRA imposes
various obligations on “furnishers” who provide
financial and credit information to CRAs. See Chiang v.
Verizon New England Inc., 595 F.3d 26, 35 (1st Cir.
2010); 15 U.S.C. § 1681s-2. Discover argues that
plaintiff's FCRA claim against it fails to state a claim
for two reasons.
Discover asserts that plaintiff cannot assert a claim under
the FCRA based on his allegations that Discover provided
inaccurate information to CRAs. Discover correctly argues
that the FCRA's requirement in § 1681s-2(a) that a
furnisher provide accurate information to CRAs does not
create a private cause of action for a consumer to assert
against a furnisher of credit information. See
Chiang, 595 F.3d at 35 (noting that only §
1681s-2(b), but not § 1681s-2(a), confers a private
right of action); see also Tilley v. Global Payments,
Inc., 603 F.Supp.2d 1314, 1322 (D. Kan. 2009)
(“Significantly, Congress did not create a private
right of action for violations of § 1681s-2(a). These
duties can only be enforced by governmental agencies and
officials.”). Thus, none of plaintiff's allegations
that Discover provided inaccurate information to CRAs states
a claim under the FCRA.
Discover recognizes that plaintiff may assert a private right
of action for violating the FCRA's § 1681s-2(b)
requirements. Chiang, 595 F.3d at 36;
Tilley, 603 F.Supp.2d at 1322. But, Discover
asserts, plaintiff's Complaint fails to allege facts
capable of supporting a plausible inference that Discover
violated this section of the FCRA.
specifically, § 1681s-2(b)(1) of the FCRA imposes
certain requirements on a furnisher of information “who
has received notice of a dispute from a CRA.”
Llewellyn v. Allstate Home Loans, Inc., 711 F.3d
1173, 1178 (10th Cir. 2013) (emphasis added). This provision
requires the furnisher to:
(1) investigate the disputed information; (2) review all
relevant information provided by the CRA; (3) report the
results of the investigation to the CRA; (4) report the
results of the investigation to all other CRAs if the
investigation reveals that the information is incomplete or
inaccurate; and (5) modify, delete, or permanently block the
reporting of ...